Mani Ram vs Romesh Chand etc.

D.B. Lal, J.—This execution first appeal has been directed against the decision dated 12th November, 1970 of a learned single Judge of this Court. The decree-holders are Ramesh Chand and others and the decree which they have obtained on 24th July, 1958, is a decree for partition of immovable property as well as for payment of certain definite sums of money said to be due from one party to the other. This decree was granted by the Senior Sub-Judge, Dharamsala, who had pecuniary jurisdiction to grant the decree at that time. Subsequently, the territorial jurisdiction of the area was conferred upon the Delhi High Court, and, in view of Section 5(2) of the Delhi High Court Act, 1966, the said High Court acquired "ordinary original civil jurisdiction in every suit" instituted in this area, of which the Value exceeded Rs. 25,000/- Accordingly the execution case relating to the partition decree, which was formerly pending before the Court of the Senior Sub-Judge, Dharamsala, was sent to High Court and a fresh execution application was moved in that Court on 27th June, 1969. One of the decree holders, Subhkaran, executed a deed of agreement dated 20-12-1968 (Ex. JDW-2/1) whereby he relinquished his interest in the decree and conferred the same upon Mani Ram judgment-debtor. He received Rs. 1,000/- from Mani Ram as a consideration to this relinquishment of his interest. It was further stipulated by him that whatever share he possessed in the disputed property was hereinafter relinquished in favour of Mani Ram, and the decree was satisfied to that extent. Rather, it was deemed transferred and Mani Ram could obtain possession of that share belonging to Subhkaran. On the very same day, a receipt (Ex. JDW.-1/B) was executed in proof of the payment of Rs. 1,000/-. On the basis of these two documents, Mani Ram, judgment-debtor, filed an application before the Senior Sub-Judge on 4th January, 1968, and the satisfaction of decree to the extent of the share of Subhkaran was recorded in the Court register. Since, on that day, the jurisdiction existed in the Delhi High Court, whatever order the learned Senior Sub-Judge passed, was without jurisdiction. Therefore, on 27th June, 1969, an application for execution was moved in the High Court on behalf of Ramesh Chand and others. Mani Ram at once took up the objection that, as a result to agreement (Ex. J.D.W.-2/1), he has become entitled to the right and interest of Subhkaran in the decree and to that extent, the decree should be deemed satisfied. This was an objection obviously u/s 47 of the Code of Civil Procedure, and the matter came up for decision before a learned Single Judge of this Court.

The decree-holders as well as the judgment-debtor produced oral evidence which consisted of, inter alia, the statements of Subhkaran as well as Mani Ram. It is significant, that Mani Ram, in his statement, gave out that he "had purchased the interest of Subhkaran who was one of the decree holders". This purchase of interest was incorporated in the document Ex-J.D.W-2/1 dated 20th December, 1967. The learned single Judge framed certain issues which arose between the parties. Issues No. 2 and 4, which the learned single Judge has reproduced in his judgment, relate to the controversy in question. It was urged, on behalf of the decree-holders; that the agreement (Ex. J.D.W. -2/1) extinguished the right, title, and interest of the decree-holder Subhkaran and created the same in favour of Mani Ram. Besides this, the instrument clearly transferred of assigned a part of the decree, by which an interest was created, in favour of Subhkaran, and this transfer or assignment was made in favour of Mani Ram. In this manner, the instrument was governed by the provisions of Section 17(1)(b) and (e) of the Indian Registration Act, 1908. Since there was no registration of the instrument, the same could not be received as evidence of the transaction affecting the property, nor did it confer any right upon Mani Ram. The learned Counsel for the judgment-debtor contended, in reply, that the instrument only contained a relinquishment of a share in decree or had the effect of extinguishment of the right of decree-holder. It was rather a contract for relinquishment, or could even considered an acknowledgment given for satisfaction of the decree. As such, the instrument by itself did not create or extinguish any interest in property. Therefore, according to judgment-debtor, the instrument did not require registration u/s 17 of the Act.

The learned single Judge agreed with the contentions of the decree-holders and refused to receive the instrument as evidence of the transaction affecting the property. He also held that the interest of Subhkaran could not be stated to be transferred in favour of Mani Ram on the basis of such instrument which was unregistered. Accordingly, he held that the said instrument could not be availed of by the judgment-debtor and his objection was dismissed.

The judgment-debtor Mani Ram has felt aggreived by the decision of the learned single Judge and has come up in this execution first appeal.

If we carefully consider the document (Ex. J.D.W.-2/1), we come across some clear averments which are to the following effect. The executant Subhkaran referred to his own share in the decree and said that the document related to that share to which he was entitled. He wrote down that, upto the extent of his share in the decree, he has satisfied it in lieu of Rs. 1,000/-. The consequence is that he has made Mani Ram the owner of such share and obviously, Mani Ram can get possession of that share in execution of the decree. That is the only natural inference which follows from this averment. Subhkaran further wrote down that the decree is deemed satisfied to the extent of his interest in the property. This would again mean that Mani Ram could get possession over his share as it is evident, possession to respective parties is yet to be awarded in execution of the decree. However, Subhkaran stated that he would be entitled to receive his share out of Rs. 8,000/- and odd which were deposited in the Court, and with this amount, we are not concerned in these proceedings. It is, thus, manifest that the instrument extinguished the interest in immovable property and created such interest in favour of Mani Ram. The value of such interest is obviously more than Rs. 100/-. It may also be stated that the instrument transferred or assigned that part of the decree which had created interest in immovable property in favour of Subhkaran. The case was, therefore, clearly covered under Sub-clauses (b) and (e) of Section 17(1) of the Indian Registration Act, 1908.

The argument that the instrument contained an acknowledgment given for satisfaction of the decree, or contained a contract to relinquish a part of the decree, or that in it a right under decree was only dealt with without any consequential relief and hence an interest in immovable property was neither created nor extinguished, is not sustainable, what was given in lieu of payment of Rs. 1,000/-: that is the crucial question. It is obvious, that Mani Ram got the right to execute the decree to the extent of the share of Subhkaran. He got definite interest in the property as a result to this instrument. The learned Counsel relied upon ILR 23 Cal (Gous Mohammad v. Khavas Ali Khan).That case related to the year 1896 when Clause (e) of Section 17(1) of the Act was not enacted. Since a deed of assignment of an interest in the decree creating a right or title in property was not compulsorily registrable on that date, and the document involved was such a deed of assignment, it was held that the document which was subject-matter of that objection, was not compulsorily registrable. Now, in view of Sub-clause (e), such an assignment of decree is also compulsorily registrable and therefore the facts of that case are clearly distinguishable.

The learned Counsel then relied upon Addanki Narayanappa and Another Vs. Bhaskara Krishtappa and Others, Again, that case relates to specific shares of partners in a joint business. A deed of assignment of such interest was written, and it was held that the partnership assets were movable property and as such the document was not compulsorily registrable u/s 17(1) of the Indian Registration Act. While dealing with this case, their Lordships observed that upon dissolution of the partnership the shares are converted into money representing the value of the property. Even if immovable property is involved as assets of partnership, the conversion is to be made in the shape of money equivalent of such property and only thereafter, division of shares is effected. As the document assigning such shares in partnership actually deals with movable property, it is not compulsorily registrable. Therefore, this case also does not help the Appellant.

It is clear that in the instant case the instrument created an interest in immovable property in favour of Mani Ram by extinguishing the same interest that once belonged to Subhkaran. Besides this, the instrument also assigned a portion of decree in favour of Mani Ram, and, obviously, that portion of the decree had created an interest in immovable property in favour of Subhkaran. Since the value of such interest is more than Rs. 100/- the instrument required registration u/s 17(1), and u/s 49, could neither be taken into evidence, nor did it confer any right or title upon Mani Ram.

The learned Counsel for the Appellant contended that the decree-holders are bound by the order dated 4th January, 1968 of the learned Senior Sub-Judge, which operates as res judicata. Besides this, on principles of estoppel, they are debarred from questioning that order whereby the compromise was recorded in Court. It was conceded before the learned single Judge, that the learned Senior Sub-Judge had no jurisdiction to record the compromise, as it is obvious that the jurisdiction existed in the High Court. It is a fundamental principle that an order passed by a Court without jurisdiction is a nullity and that its invalidity can be set up whenever and wherever it is sought to be enforced, or relied upon. The learned single Judge has noted down in the proceedings that no other issue was claimed by either party. Therefore, the contentions regarding jurisdiction, res judicata or estoppel must be deemed to have been given up by the Appellant. Besides this, as obvious, the decision arrived at in the Court of the Senior Sub-Judge was without jurisdiction, and, therefore, a nullity. No res judicata or estoppel could be pleaded if it is based on such a decision.

It is, then, contended that the instrument could be used for a collateral purpose, but it is not explained as to what collateral purpose is sought to be achieved on the basis of such instrument. If it was a transfer of interest in immovable property, it required registration. Since it was not registered, the transfer had not taken place. No collateral purpose is sought to be enforced in execution of the decree. It is a different question that Mani Ram may be advised to institute some independent proceeding for recovery of Rs. 1,000/-from Subhkaran. With such proceedings, we are not concerned in this appeal.

It is also feebly contended, that the receipt (Ex. J.D.W.-1/B) can be considered independent of the agreement (Ex. J.D.W.-2/1), that the proceedings can be converted into a suit for recovery of Rs. 1,000/- from Subhkaran, and that the very fact that Mani Ram became joint owner in the decree with other decree-holders renders the whole of the decree a nullity. All these arguments are devoid of any merit. Firstly, these were not raised before the learned single Judge and the pleas regarding thereto were given up. Secondly, there is little substance in the contentions relating to either of them. The receipt (Ex. J.D.W.-1/B) cannot be considered separate from the instrument and no relief can be granted to Mani Ram on the basis of such a receipt. His very statement is that he purchased a portion of decree after payment of Rs. 1,000/-. He cannot resile from that position and cannot separate the transaction of purchase of share from the payment of Rs. 1,000/-, because both relate to one and the same transaction. It is futile to argue that Mani Ram became joint-owner in the decree and therefore, the entire decree has become a nullity. In fact, the joint ownership of Mani Ram, is not being recognised and the instrument does not confer any title upon him in addition to what he already possesses in the decree. Similarly, the objection u/s 47 cannot be converted into a suit for recovery of Rs. 1,000/-. Neither there is a prayer to this effect, nor it is pointed out, in what manner a decree can be granted in favour of Mani Ram for recovery of Rs. 1,000/- during the course of these proceedings which exclusively relate to the execution of a partition decree.

In this view of the matter, there is hardly any ground to take a different view than what has been taken by the learned single Judge. His decision is, therefore, sustained and the appeal is dismissed, with costs to the decree-holder Respondents.

M.H. Beg, C.J.

I agree.